Appeal against finding of impairment by reason of non-cooperation dismissed

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The High Court has upheld a decision that Practice Nurse Michelle Jane Margaret Harford’s failure to cooperate with an investigation of a colleague, F, amounted to misconduct and impairment of fitness to practise.

Ms Harford raised concerns about F’s fitness to practise following the receipt of adverse comments and complaints from patients at the practice surgery in which they both worked. As part of the investigation into F’s conduct Ms Harford received two written requests for patient details but refused to reply or give any reason why she was unwilling to provide the information.

Ms Harford’s omissions, contrary to paragraph 56 of the Nursing and Midwifery (NMC) Code of Practice 2008 (the Code), which imposes on all registered nurses an obligation to cooperate with internal and external investigations, was considered to amount to misconduct and her fitness to practise was impaired by reason of this failure to cooperate. This failure potentially caused harm to the patients and jeopardised their trust and confidence in the nursing profession.

In bringing her appeal, Ms Harford submitted that paragraph 56 of the Code imposed an obligation to cooperate with internal and external investigations only insofar as they related to a registrant. She also submitted that the Panel was wrong to conclude that her fitness to practise was impaired by reason of her omissions and failed to have proper regard to her explanation as to why she had not provided this information. Ms Harford further submitted that the Panel did not have regard to her evidence that if similar circumstances were to be repeated she would disclose the information because she had come to recognise that patient safety was paramount.

Hearing the appeal, the Court held that there was no good reason why paragraph 56 of the Code should be interpreted narrowly as circumstances could arise where it would be wholly unprofessional if a registrant failed to cooperate with internal and external investigations which related to persons other than the registrant.

The Court stated that the Panel had applied the correct test in considering Ms Harford’s failure as amounting to misconduct, as set down in Roylance v GMC (No. 2) [2001]. The Court held that it was clear that Ms Harford had failed to comply with an important provision in her professional code of practice, making it more difficult for it to be ascertained whether or not the colleague was performing her work properly and professionally.

Furthermore, the Court held that the Panel was not wrong in concluding that Ms Harford’s practice was impaired as a result of her omissions. The Court pointed to the fact that the Panel had the advantage of seeing and hearing Ms Harford and it had provided cogent reasoning to justify its conclusion that her fitness to practise was impaired.

 Ultimately, the Panel was "not confident" that Ms Harford truly understood the relationship and potential tension between confidentiality on the one hand and protection of patients on the other. The Court ruled that the Panel was not wrong in concluding that Ms Harford had limited insight into the potential harm to patients which would be caused by a repeat of her misconduct and the potential her actions had for undermining the trust and confidence of the public in the nursing profession and so the finding of impairment was justified.

The Court upheld the Conditions of Practice Order imposed upon Ms Harford’s practice for six months, which is due to expire later this month.